Citation Nr: 1340986 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 11-05 402A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to an increased disability evaluation for mechanical back pain with degenerative disc disease of the lumbar spine, currently evaluated as 20 percent disabling. 2. Entitlement to an increased disability evaluation for neurological manifestation of the right lower extremity, with radiating pain and positive straight leg raising, currently evaluated as 10 percent disabling. 3. Entitlement to service connection for a right shoulder disorder. 4. Entitlement to service connection for a sleep disorder. 5. Entitlement to service connection for an eye disorder. 6. Entitlement to service connection for a gastrointestinal disorder, including as secondary to service-connected mechanical back pain. 7. Entitlement to service connection for weight loss, including as secondary to service-connected mechanical back pain. 8. Entitlement to service connection for headaches. 9. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for loss of a tooth. 10. Entitlement to a total rating for compensation on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from July 1989 to July 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. The Veteran was afforded a videoconference hearing before the undersigned Acting Veterans Law Judge in October 2011. The Virtual VA claims file has been reviewed. The issues of service connection for a gastrointestinal disorder, a sleep disorder, and a disorder manifested by weight loss, as well as entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for loss of a tooth and entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's mechanical back pain with degenerative disc disease of the lumbar spine was productive of pain with range of forward flexion of the lumbar spine to 28 degrees, but without unfavorable ankylosis. 2. Throughout the rating period on appeal, the Veteran's neurological manifestations of the right lower extremity was productive of mild incomplete paralysis of the sciatic nerve. 3. A right shoulder disorder is not attributable to the Veteran's service. 4. An eye disorder is not attributable to the Veteran's service. 5. Headaches are not attributable to the Veteran's service. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 40 percent, but no higher, for mechanical back pain with degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243 (2013). 2. The criteria for a disability rating higher than 10 percent for Veteran's neurological manifestations of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.20, 4.124a, Diagnostic Code 8520 (2013). 3. A right shoulder disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 4. An eye disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 5. Headaches were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in September 2009, April 2010, and May 2011, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for service connection and increased ratings, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of VA and private post-service treatment, and the Veteran's own statements in support of his claims. No examination or nexus opinion is required regarding the claims for service connection as the weight of the evidence demonstrates no related injury, disease, or event during service; therefore, no examination or nexus opinion is required, and any opinion would be speculative, as there is no injury, disease, or event during service to which such a currently diagnosed disorder could be related. For these reasons, a remand to provide the Veteran with a medical examination and/or obtain a medical opinion is not required with respect to the claims for service connection. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). The Veteran was afforded VA examinations responsive to the claims for increased ratings. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. The examination reports contain all the findings needed to rate the Veteran's service-connected mechanical low back pain and neurological manifestations of the right lower extremity, including history and clinical evaluation. The Veteran's appeal for higher evaluations, is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disability since the 2010 VA examinations, including no assertion by the Veteran of worsening since the last VA examination. The Veteran here does not assert that his mechanical back pain and neurological manifestations of the right lower extremity have worsened since the December 2010 VA examinations; he merely asserts entitlement to a higher disability evaluation. The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disability on appeal, does not suggest that these disabilities worsened since the most recent VA examinations, or since the most recent VA treatment records. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded adequate examinations on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Veteran has not alleged that any examination is inadequate to decide the claims being adjudicated herein, so the examinations are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Disability Evaluation Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability has not materially changed and uniform evaluations are warranted. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Burton v. Shinseki, the Court held that consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. In Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence; therefore, the veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against a veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Mechanical Low Back Pain Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine ("general rating formula"). 38 C.F.R. § 4.71a, DCs 5237-5242. Intervertebral disc syndrome (IVDS) is rated under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, DC 5243. According to the general rating formula, a 20 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (5). The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a. The Veteran's lumbar spine strain is evaluated as 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that an evaluation of 40 percent, but no higher, is warranted for the Veteran's mechanical low back pain with degenerative disc disease is warranted. An April 2008 private occupational consultation report indicates that forward flexion of the lumbar spine was to 46 degrees and extension was to 10 degrees. A May 2009 VA internal medicine treatment note indicates that the Veteran had markedly limited spinal flexion and extension and chronic low back pain. A May 2009 VA treatment record indicates that the Veteran reported that the back pain was more frequent and intense and was debilitating. A July 2009 VA emergency room treatment record indicates that the Veteran sought treatment for severe low back pain. An August 2009 VA orthopedic clinic record indicates that the Veteran reported having increased back pain and radicular symptoms. The Veteran had tenderness and significant spasm. At the November 2009 VA examination, the Veteran had flexion to 30 degrees, extension to 10 degrees, lateral flexion to 10 degrees bilaterally and, and rotation to 20 degrees bilaterally, without additional loss of motion on repetitive use. More recently, at the December 2010 VA examination, the Veteran had forward flexion to 28 degrees, with lateral flexion to 10 degrees bilaterally, extension to 10 degrees, and rotation to 15 degrees bilaterally. Such range of motion contemplated the Veteran's pain. There was tenderness and pain, but no spasm, fixed deformity, or intervertebral disc syndrome. The reports indicated that there was pain on motion, but without weakness or atrophy. There was also no evidence of postural abnormalities or abnormalities of the musculature of the spine. Strength testing was normal, but sensory function showed decreased ankle jerk. The Veteran denied experiencing intermittent erectile dysfunction. Thus, applying the facts to the criteria set forth above, the Veteran is entitled to a 40 percent evaluation for his service-connected mechanical low back pain with degenerative disc disease for the rating period on appeal under the General Rating Formula for Diseases and Injuries of the Spine. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less. 38 C.F.R. § 4.71a. The Board has considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current ratings are based on the objectively demonstrated reduced motion; the November 2009 and December 2010 VA examination reports indicate that the Veteran complained of pain, but physical examination did not demonstrate any additional limitations in response to pain, including incoordination, weakness, or fatigability, beyond which was reflected in the examination report. Therefore, the clinical findings do not demonstrate that the Veteran's symptoms result in additional functional limitation to a degree that would support a rating in excess of the current disability rating; the evidence reveals a disability picture most approximating a 40 percent evaluation thereafter, even with consideration of whether there was additional functional impairment due to DeLuca factors. See Mitchell, supra. Further, the evidence does not show favorable or unfavorable ankylosis of the entire thoracolumbar spine during either of the rating periods on appeal. The December 2010 VA examination expressly stated that there was no evidence of ankylosis. The evidence also does not show that the Veteran's mechanical low back pain with degenerative disc disease has been productive of incapacitating episodes for either rating period on appeal. Although the Veteran reported that he had incapacitating episodes requiring bed rest for one and a half months at his October 2011 hearing before the undersigned, the Veteran's VA treatment records do not confirm that his treating physicians at VA noted any incapacitating episodes or prescribed bed rest due to his mechanical low back pain with degenerative disc disease. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the neurological examinations at these examinations showed decreased strength and sensation in the left lower extremity due to his service-connected lumbar spine strain; the Veteran was granted service connection for neurological manifestations of the right lower extremity, and assigned a separate 10 percent disability evaluation, which will be considered below. As the Veteran is separately evaluated for his neurological deficits of his right lower extremity, it is not for consideration here. In conclusion, the Board finds that the weight of the evidence supports the assignment of a 40 percent rating, but no higher, for the Veteran's mechanical low back pain with degenerative disc disease, and the appeal is granted to that extent. Neurological Manifestation Under Diagnostic Code 8520, a 10 percent disability evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation is assigned for moderate incomplete paralysis; a 30 percent disability rating requires moderately severe incomplete paralysis; and a 50 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent disability rating requires complete paralysis; the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Upon reviewing these rating criteria in relation to the evidence for consideration, throughout the entire rating period on appeal, the Board finds that the Veteran's neurological manifestations of the right lower extremity is most consistent with his current 10 percent disability rating and that a higher disability rating is not warranted. The evidence of record does not show that he experiences moderate incomplete paralysis of the sciatic nerve. In the February 2011 addendum to the more recent December 2010 VA examination, the VA examiner described the Veteran's neurological manifestations as minimal. Although the Veteran did not have sensation to vibration, pinprick, or right light touch, his reflexes were intact. Likewise, he had active movement against some resistance of the hips and ankles, without atrophy or gait abnormality. Muscle tone was normal, and the joint function was not affected. The VA examiner also noted that EMG testing in 2005 and 2008 was normal. There was neuralgia but no paralysis or neuritis. The Veteran had appropriate knee flexion. Therefore, his symptomatology most closely approximates the criteria for the currently assigned 10 percent disability evaluation for mild impairment. The Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the neurological manifestations of the right lower extremity for the entire appeal period, and the appeal for a rating in excess of 10 percent is denied. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Considerations As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's mechanical low back pain with degenerative disc disease and neurological manifestations of the right lower extremity are fully contemplated by the applicable rating criteria. As shown above, the criteria include symptoms, each of which were addressed in the VA examination reports and treatment records and which provided the basis for the disability ratings that were assigned. With regard to his mechanical low back pain with degenerative disc disease and neurological manifestations of the right lower extremity, he complains of pain and reduced motion as a result of the disability, which was clearly considered in the range of motion testing that was carried out and which serves as the basis for his assigned disability rating for his mechanical low back pain with degenerative disc disease and neurological manifestations of the right lower extremity. In any event, the evidence does not reflect that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. The Veteran alleged that mechanical low back pain with degenerative disc disease and neurological manifestations of the right lower extremity interferes with his ability to work, but the February 2011 VA examination addendum indicates that the Veteran's limitations extend only to heavy lifting, no prolonged sitting or standing, and no pushing or pulling of heavy objects. Therefore, referral for consideration of extraschedular ratings for the Veteran's mechanical low back pain with degenerative disc disease and neurological manifestations of the right lower extremity is not warranted. 38 C.F.R. § 3.321(b)(1). In the absence of exceptional factors associated with mechanical low back pain with degenerative disc disease and neurological manifestations of the right lower extremity, the Board finds that the criteria for submission for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As will be explained below, the Veteran does not have a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claims for service connection. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board notes that, whether service connection is claimed on direct or secondary basis, a necessary element for establishing such a claim is the existence of current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). As explained by the Federal Circuit, in order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in service. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (2001). In this case, the Veteran must show that he has currently has a right shoulder disorder, an eye disorder, and headaches due to disease or injury in service or caused or aggravated by service-connected disease or injury. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability). The Veteran is competent to report observable symptoms such as right shoulder pain or blurry visions. There is at least one notation of treatment for right shoulder pain and blurry vision in post-service treatment records and the Veteran is competent to relate that which is in the record. Jandreau v. Nicholson, 492 F.3d 1372 (2007). However, the weight of the evidence is against the existence of a right shoulder disorder, eye disorder, or headaches. The evidence shows that service treatment records do not show any complaints, treatment, or diagnoses of right shoulder disorder, eye disorder, or headaches during or after service. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (citing Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (Lance, J., concurring) (VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). The Board acknowledges the diagnosis of a dislocated right shoulder in August 2008, but points out that this was related to a work-related injury three months earlier. Likewise, the Veteran had several complaints of blurry vision, which were acute and resolved, with brief onset nearly 20 years after service. The Board also points out that the Veteran repeatedly denied complaints of headaches when seeking treatment at VA. There is no credible evidence of a current right shoulder disorder, eye disorder, or headaches. Here, there is a remarkable conflict in the evidence. There is lay evidence to the effect that there was some right shoulder and eye pathology. However, this positive evidence is remarkably lacking in detail and clinical findings adequate to support any diagnoses of a current disorder. Although the evidence remains competent, the lack of supporting evidence of a diagnosis for either renders such lay and medical evidence to be of little probative value. The Board finds that the in-service normal findings and absence of a current disability due to disease or injury are far more probative than the prior complaints and the Veteran's lay opinion. Here, the most probative and credible evidence establishes that the Veteran does not have a right shoulder disorder, an eye disorder, or headaches. The preponderance of the evidence is against the claims and there is no doubt to be resolved. As such, there is no evidence that the incidental findings are of any clinical significance. In the absence of disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). ORDER Entitlement to a disability evaluation of 40 percent for mechanical back pain with degenerative disc disease of the lumbar spine is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to a disability evaluation in excess of 10 percent for neurological manifestation of the right lower extremity, with radiating pain and positive straight leg raising, is denied. Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for an eye disorder is denied. Entitlement to service connection for headaches is denied. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). However, the Veteran has not received adequate VCAA notice with regard to his claim of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for loss of a tooth. The Board acknowledges that the Veteran was provided VCAA notice letters, but again finds that these letters were insufficient. In this regard, the Board notes that, the VCAA letters provided an explanation of the information and evidence necessary to substantiate a claim for service connection, and not entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for loss of a tooth. Likewise, the RO did not adjudicate the Veteran's claim as one entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for loss of a tooth. The record reflects that the RO, as noted in an informal conference report dated July 2010, is aware of the distinction between a claim for service connection and for benefits under 38 U.S.C.A. § 1151, but nonetheless did not provide the appropriate notice to the Veteran and the record does not reflect that the issue on appeal has been considered by the AOJ pursuant to the correct law. In view of the foregoing, the Board finds that the claim must be remanded for compliance with the VCAA and recent case law. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (failure by the BVA to enforce compliance with the requirements of 38 U.S.C.A. § 5103(a) for the VA to inform a claimant of the information or evidence necessary to substantiate a claim, as well as to inform a claimant of which evidence the VA will seek to provide and which evidence the claimant is to provide, is remandable error). Under the VCAA, VA must also provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay statements can satisfy each of these elements in certain circumstances, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); McLendon, 20 Vet. App. at 83. In this case, the Veteran has not been provided with VA examinations in order to address whether his claimed gastrointestinal disorder, sleep disorder, and a disorder manifested by weight loss, are related to his active military service. In this regard, the Board observes that the Veteran has reported a history of fecal incontinence, weight loss, and irritable bowel syndrome, which he has associated with his service-connected mechanical low back pain, as well as directly to his service. Likewise, he has associated his sleep impairment directly to his service, as well as his service-connected major depression and mechanical low back pain. As such, the Board needs more information to determine whether the Veteran has additional disabilities attributable to his service-connected mechanical low back pain and major depression, as opposed to unrelated factors. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to different disabilities in the absence of medical evidence which does so). VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the Board finds that the Veteran should be afforded VA examinations regarding his claims for service connection for gastrointestinal disorder, sleep disorder, and a disorder manifested by weight loss. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at VA health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). Given that Veteran's claims for service connection for a sleep disorder, a gastrointestinal disorder, and weight loss are being remanded, the Board finds that a decision on the TDIU issue must be deferred to allow the RO the opportunity to develop and readjudicate this claims in accordance with the Board's remand. Accordingly, the case is REMANDED for the following action: 1. Please send the Veteran a corrective VCAA notice letter under 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159(b). The letter must: (a) inform him of the information and evidence that is necessary to establish entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for loss of a tooth; (b) inform him of the information and evidence that VA will seek to provide; (c) inform him of the information and evidence he is expected to provide; and (d) request that he provide any evidence in his possession pertaining to his claims to VA. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). See, too, Huston v. Principi, 17 Vet. App. 195 (2003). 2. Contact the Veteran and ask him to identify all VA and non-VA medical treatment received for the claimed disabilities. The letter should request sufficient information to identify the health care providers, and if necessary, signed authorization, to enable VA to obtain any additional evidence. If the Veteran adequately identifies the health care providers and provides the completed authorizations, the RO request legible copies of all pertinent clinical records that have not been previously obtained and incorporate them into the Veteran's claims file. 3. Schedule the Veteran for an appropriate VA examination in order to assist in determining the current nature and likely etiology of the Veteran's gastrointestinal disorder, including weight loss, to determine whether this is secondary to any of the Veteran's service connected disabilities. Based on the examination and review of the record, the examiner is requested to opine whether the Veteran has a current gastrointestinal disorder, including a disorder manifested by weight loss, and if so, whether it is at least as likely as not (whether there is at least a 50 percent probability) related to the Veteran's service. The examiner is requested to opine as to whether it is at least as likely as not that any current gastrointestinal disorder, including a disorder manifested by weight loss, is proximately due to or aggravated by a service-connected disability. A rationale for all opinions expressed should be provided. The relevant documents in the claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. 4. Schedule the Veteran for an appropriate VA examination in order to assist in determining the current nature and likely etiology of the Veteran's sleep disorder and to determine whether any current disorder is secondary to the Veteran's service connected disabilities. Based on the examination and review of the record, the examiner is requested to opine whether the Veteran has a current sleep disorder, and if so, whether it is at least as likely as not (whether there is at least a 50 percent probability) related to the Veteran's service. The examiner is requested to opine as to whether it is at least as likely as not that any current sleep disorder is proximately due to or aggravated by a service-connected disability. A rationale for all opinions expressed should be provided. The relevant documents in the claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. 5. After completing all indicated development, readjudicate the issues remaining on appeal in light of all the evidence of record. If any benefits sought on appeal remains denied, the RO should furnish a fully responsive Supplemental Statement of the Case to the Veteran and afford him a reasonable opportunity for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs